Appeal by defendant from judgments entered 17 August 1999 by
Judge Wiley F. Bowen in Wake County Superior Court. Heard in the
Court of Appeals 13 March 2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General Victoria L. Voight, for the State.
John T. Hall for defendant.
BRYANT, Judge.
On 7 June 1999, defendant Demonte Lee Rhodes was indicted for
robbery with a dangerous weapon of Michael Jones (99 CRS 35276),
attempted robbery with a dangerous weapon of Shaune Smith (99 CRS
35277), and robbery with a dangerous weapon of Dariek Vines (99 CRS
35278). Defendant entered pleas of not guilty on 1 July 1999.
These matters came for jury trial at the 16 August 1999
criminal session of Wake County Superior Court with the Honorable
Wiley F. Bowen presiding. Defendant was found not guilty of
robbery with a dangerous weapon of Dariek Vines (99 CRS 35278), and
guilty of the remaining charges for robbery with a dangerous weapon
of Michael Jones (99 CRS 35276) and attempted robbery with adangerous weapon of Shaune Smith (99 CRS 35277). Two consecutive
sentences with terms of 77-102 months each were imposed. Defendant
gave notice of appeal in open court on 17 August 1999.
Defendant presents three arguments on appeal all relating to
his charge for the attempted robbery of Shaune Smith (99 CRS
35277). First, defendant argues that the trial court erred in
dismissing the charge because there existed a fatal variance
between the name on the indictment and the victim's true name.
Second, defendant argues that the trial court erred in allowing the
State to amend the indictment to reflect the victim's true name.
Third, defendant argues that the trial court erred in failing to
dismiss the charge because insufficient evidence existed as to the
true identity of the victim. As to each argument, we disagree and
find no error.
An indictment is a written accusation that charges a person
with the commission of one or more offenses. N.C.G.S. § 15A-641(a)
(1999). The purpose of the indictment is to inform the accused of
the charge(s) against him, providing sufficient detail to allow the
accused to prepare his defense.
State v. Russell,
282 N.C. 240,
243-44, 192 S.E.2d 294, 296 (1972). N.C.G.S. § 15A-923(e) (1999)
provides that a bill of indictment may not be amended. However,
our courts have interpreted N.C.G.S. § 15A-923(e) only to prohibit
amending an indictment such as would alter the nature of the
charge.
State v. Brinson, 337 N.C. 764, 767, 448 S.E.2d 822, 824
(1994). When a party fails to move to quash an indictment at trial, he
effectively waives his ability to contest defects in the indictment
at a later time.
State v. Frogge, 351 N.C. 576, 584, 528 S.E.2d
893, 898,
cert. denied by Frogge v. North Carolina, 531 U.S. 994,
148 L. Ed. 2d 459 (2000). Neither the transcript nor record
reflects that defendant moved to quash the alleged defective
indictment. Therefore, defendant has waived his ability to contest
the alleged defect on appeal. Even if defendant had not waived
this argument, we find there exists grounds to overrule this
assignment of error.
The indictment listed the victim's name as
Shaune Smith. The
victim testified at trial that his true name is
VaShaune Smith.
Defendant argues that this variance deprived him of being tried and
sentenced on the true bill of indictment, and that the variance
deprived the trial court of jurisdiction to submit the question to
the jury or to accept the guilty verdict and impose a sentence
based on that guilty verdict. We disagree.
Our courts have previously held that amending a typographical
error in a bill of indictment does not alter the nature of the
charge in a manner that would be prohibited pursuant to N.C.G.S. §
15A-923(e).
State v. Rotenberry, 54 N.C. App. 504, 284 S.E.2d 197
(1981).
See State v. Grigsby, 134 N.C. App. 315, 517 S.E.2d 195
(1999),
rev'd on other grounds by 351 N.C. 454, 526 S.E.2d 460
(2000) (stating that a change in defendant's name which added one
letter did not impermissibly alter the charge in the original
indictment);
State v. Bailey, 97 N.C. App. 472, 389 S.E.2d 131(1990) (stating that altering an indictment to change the victim's
name from Pettress Cebron to Cebron Pettress was not an amendment
within the meaning of N.C.G.S. § 15A-923(e)).
In the case at bar, changing the victim's name on the
indictment from Shaune Smith to VaShuane Smith is the type of
typographical editing allowed by the
Grigsby,
Bailey, and
Rotenberry Courts. Defendant has not alleged that he was confused
as to whom the indictment was referencing. Nor has the defendant
shown that the variance deprived him of the opportunity to prepare
a defense against the charge. For all of the reasons stated above,
we hold that the trial court did not err in failing to dismiss the
charge because of a fatal error in the indictment, nor did the
trial court err in allowing the State to amend the indictment.
As defendant's third argument is essentially the same as his
first argument _ the trial court erred in failing to dismiss the
charge because the indictment referred to the victim as Shaune
Smith versus VaShaune Smith _ we overrule the corresponding
assignment of error for the reasons stated above.
NO ERROR.
Judges WALKER and HUNTER concur.
Report per Rule 30(e).
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